Citation Nr: 21000996 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-66 026 DATE: January 6, 2021 REMANDED Entitlement to service connection for lung disease to include pleural effusion is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Army from August 1961 to August 1963. In September 2018, the Veteran testified at a personal hearing before the undersigned at the regional office (RO) and a transcript of that hearing has been associated with the claims file. In a December 2018 decision, the Board of Veterans’ Appeal (Board), among other things, denied the Veteran’s claim of service connection for lung disease to include pleural effusion. The Veteran appealed the December 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent August 2019 order, that incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded the December 2018 Board decision to the extent that it denied service connection for lung disease to include pleural effusion. In March 2020, the Board remanded the appeal. Entitlement to service connection for lung disease to include pleural effusion is remanded. The Board in March 2020 remanded the appeal to, among other things, obtain a diagnosis for the Veteran’s lung diseases considering the November 2012 private medical record which noted that the Veteran had left pleural effusion and basilar atelectasis. Moreover, the post-Remand record shows that the Veteran was provided a VA examination in October 2020. However, the Board does not find the October 2020 VA examination adequate. The Board has reached this conclusion because, while the VA examiner opined that the Veteran did not have a current lung disease, including lung cancer, bibasilar atelectasis, and pleural effusion, the examiner did not consider or discuss the significance, if any, of the November 2012 private medical record which noted that the appellant had left pleural effusion and basilar atelectasis. It is important to note that the Court has remanded this case for this basis. Therefore, the Board finds that a Remand is required to obtain a new and adequate medical opinion. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not satisfied, the Board itself errs in failing to ensure compliance). While the appeal is in remand status any outstanding VA and private treatment records should also be obtained and associated with the claims file. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Associate with the record any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran should submit any new pertinent evidence that the Board does not have (if any). 3. Obtain an addendum to the October 2020 VA examination. The claims folder should be made available to and reviewed by an examiner. Following consideration of the evidence of record (both lay and medical) and all evidence obtained during the examination, if needed, the examiner is asked to address the following: a. Provide an opinion as to whether the Veteran was diagnosed with any lung disease at any time during the pendency of the appeal (i.e., since November 2013) to include left pleural effusion and basilar atelectasis. In order to comply with the JMPR, the examiner in providing the diagnoses and/or the lack of a diagnosis must specifically consider and discuss the November 2012 private medical record which noted that the Veteran had left pleural effusion and basilar atelectasis. In this regard, if the record shows that the Veteran previously had a lung disease and it resolved, the examiner must say so, b. As to each diagnosed lung disease found to be present during the pendency of the appeal (i.e., since November 2013) even if it has since resolved, provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) it is causally related to active service to include the Veteran’s conceded exposure to herbicides serving at Korat Royal Thai Air Force Base from April to August 1962. In providing answers to the above questions, the examiner is asked to consider and discuss the all the lay claims found in the record regarding observable symptomatology. In providing answers to the above questions, the examiner cannot rely solely on negative evidence. In providing answers to the above questions, the examiner cannot rely on the fact that the National Academy of Sciences (NAS) may not have found a relationship between the Veteran’s diagnosed lung disabilities and herbicide exposure. In providing answers to the above questions, the examiner is advised that the term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. This case has been to the Veteran’s Court. The examiner must include in the medical report the rationale for any opinion expressed. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.